Case of Patterson's Estate , 1 Watts & Serg. 291 ( 1841 )

The opinion of the Court was delivered by

Huston, J.

In 11 Serg. & Rawle 204, 207, it is said by the late Chief Justice that each administrator certainly has the right of settling a separate account, and in such case each is to be looked to for that portion of the estate which came to his hands. And, M’Nair’s Appeal, (4 Rawle 157) after an elaborate discussion, comes to this conclusion: “ I am induced to believe that there is no good reason for making executors or administrators liable more than trustees, for moneys which they have never actually received, merely because they joined in a receipt with the co-executor or co-administrator who did receive it.” In this case, however, Reed never did join in any receipt, at least it is not stated that he did. It will, however, be observed that each of these judges was speaking of the liability of the administrator in the first instance in the Orphans’ Court. It is well settled that Chancery will compel him to pay in the first instance who will be ultimately liable. The Orphans’ Court is a Court of Chancery, and acts, or ought to act, on Chancery principles; and, where administrators are solvent, will decree each to pay according to right and justice. But administrators join in a bond for the faithful performance of their duty, and when sued on this bond, will each be bound for the devastavit of the other—so will the sureties in the bond given by them.

But it must further be considered that Reed had no power to draw the assets out of the hands of his co-administrator—each was bound to pay debts and legacies, and each had an equal right to keep the assets in his hands for that purpose—and one administrator can not sustain a suit against another as long as there are claims against them to be paid. Steinman v. Saunderson, (14 Serg. & Rawle 357.) When a man dies indebted or chargeable with moneys not accounted for, his representatives must settle those accounts, and his estate pay those debts if it is sufficient. Eichelberger’s representatives may be able, though Reed is not, to show that this money has been properly applied. If on a settlement of his accounts this is not shown, resort may be had to the administration bond. Or it is possible this money or part of it may' have never been received from Rankin, who charged himself with it jointly with Eichelberger. Rankin and Eichelberger gave bond and sureties : are they entirely discharged ? But the only matter before us is the question, could Reed file and settle a separate account 1 and on principle and authority he could. How far he or any others may be liable in a suit on the bond, we are not called on at this time to say.

Decree affirmed.